I'm a libertarian lawyer and college professor. I blog on religion, history, constitutional law, government policy, philosophy, sexuality, and the American Founding. Everything is fair game though. Over the years, I've been involved in numerous group blogs that come and go. This blog archives almost everything I write.
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Friday, April 10, 2015

Barnett v. Lash on whether the EC Incorporates on Originalist Grounds

So
you can imagine that I became a strong supporter of the separation of
church and state. I still am, but with two important and relatively
recently acquired caveats. The first is that, since I became an
originalist in the late 1990s, I have paid closer attention to the text
of the Establishment Clause of the First Amendment. Although I have not
written on the subject, nor studied it with the seriousness required to
make me a true expert, I have come to believe that a constitutional bar
on established churches is not a bar on all religious expression in the
public sphere. For example, federal offices may close on Christmas, and
prayers may be said in Congress before a session begins.

Perhaps
more importantly, unlike the protections of the rights of freedom of
speech, press, assembly and the free exercise of religion, I no longer
think that the Establishment Clause of the First Amendment concerned an
individual right or liberty. Instead, as Justice Thomas has insisted,
“Congress shall make no law respecting an establishment of religion” meant that Congress could neither establish a national religion nor “disestablish” a state religion.

In this way, the succinctly-worded First Amendment is both antiestablishmentarian at the federal level and
antidisestablishmentarian at the state level. And if it did not protect
an individual right, the Establishment Clause did not refer to a right
that was also among the “privileges or immunities of citizens of the
United States,” which was secured against violation by state
legislatures by the 14th Amendment. It was not, for example, among “the
personal rights guarantied and secured by the first eight amendments of
the Constitution” listed by Senator Jacob Howard in his speech to Congress explaining what the Privileges or Immunities Clause protects.

These conflicting approaches are linked by a common assumption: The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause. Such an assumption, however, places the Founding cart before the Incorporation horse. Incorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause. In fact, we are not the first generation since Madison wrote his Memorial and Remonstrance to question the melding of the scepter and the cross. Obscured in the search for the Founders' intent are the subsequent struggles over the meaning and value of the Establishment Clause. In the years following the adoption of the Bill of Rights, state after state grappled with the issue of civil power over the subject of religion. Slowly, through a long series of cases and controversies, the idea evolved that citizens ought to be free from government-imposed religious establishments.

Kurt Lash and Akhil Amar stress a particular dynamic forgotten in the search for "original meaning." If it's true that the Bill of Rights should be incorporated via the 14th Amendment -- and there is some good evidence for it (see the above link to Sen. Howard's speech) -- the "original" period for understanding the text is just after the Civil War, not during the original Founding.

In other words, it's not a late 18th Century understanding of the First Amendment; it's a mid-19th Century understanding that is the original one, at least pertaining to what is incorporated through the 14th Amendment.

The strange result -- and I can't remember how Amar grapples with it -- is that the First Amendment might have a different original understanding when applied directly to the Federal government (the late 18th Cen.) than as applied to states via the 14th (the mid-19th Cen. understanding).